The Biden administration announced one more bit of executive overreach on its way out the door. On Nov. 26, the Centers for Medicare and Medicaid Services proposed a rule that would require its health-insurance programs to cover weight-loss drugs for patients with obesity. These drugs, which include Wegovy and Zepbound, are extremely effective and expensive. CMS estimates the proposal would cost the federal government about $40 billion over 10 years. States would be on the hook for about $3.8 billion for their Medicaid share.
Yet there is a more fundamental legal problem in a world without Chevron deference: The proposal relies on an agency’s interpretation of a statute rather than the statute’s plain language.
The Medicare Prescription Drug, Improvement and Modernization Act of 2003 prohibits Medicare coverage of drugs used specifically for anorexia, weight loss or weight gain. While the program allows coverage of weight-loss drugs approved for the treatment of type 2 diabetes and cardiovascular disease, it doesn’t when they are used for weight loss alone. States have the option to cover obesity drugs under Medicaid, but most choose not to do so.
